Trade-marks and Diarrhea (Connection?)

February 12th, 2013

This weekend I was reading the latest copy of Wired Magazine (February 2013). Page 32 contained a full-page article on the contents of Pepto-Bismol and a list of the rather unappetizing heavy metals that, when ingested, allegedly cure everything from upset stomach to diarrhea. Of course, my trained trade-mark eye focused on the small section devoted to the colour of the liquid, being the bright and readily identifiable pink, which according to Wired, is Pantone Morning Glory 15-1920.

Interestingly, bismuth cerium salicylate, which is naturally a pink powder, and used in early remedies for stomach ailments, helped establish “pink” long before Procter & Gamble, as the colour associated with a soothing effect. However, when Procter & Gamble attempted to file for a trade-mark over their identifiable pink hue, the US Supreme Court said no.

The Court’s confirmed that the colour was identifiable with the product, and that “colour….alone can act as a symbol that distinguishes a firm’s goods and identifies their source.” However, in order to gain trade-mark protection, the Court stated that colour can NOT serve ANY other purpose for the product.

The Court rejected the application for the pink trade-mark on the grounds that pink had a psychological soothing effect, and thus a function, rather than merely distinguishing wares from a single source.

Colours can be trade-marked however, and famous examples include the pink colour of FIBERGLAS insulation, and the brown colour associated with UPS. These were deemed to have no alternative connotation and therefore merely distinguished the source of the wares and services.